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Friday, December 06, 2019

Students finding interesting issues (Further Updated)

I gave my Evidence exam earlier this week. In the study/review lead-up, several students asked me a similar question (not sure if all were using the same commercial materials or if they all were talking):

A party calls an adverse party and is allowed to ask leading questions on direct under 611(c)(2). Can the party ask that witness about specific instances of untruthful conduct to impeach under 608(b), which is ordinarily allowed only on cross. In other words, when a party is allowed to ask leading questions under 611(c)(2), does that convert direct into cross for all purposes?

I presented the question to the Evidence Prof listserv. No one knew of case law raising the issue or the certain answer. One person said my students deserve a pat on the back for identifying and thinking up this issue.

The prevailing view among professors is that the party can ask about 608(b) specific instances. This derives from three things: 1) 607, which allows a party to impeach its own witnesses, from which it follows that all methods of impeachment are available; 2) 611(c)(2), which contemplates "direct" examination that functions like cross; and 3) because the party could have waited for the other side to call that witness and then cross examined the witness on specific instances, it should be able to do the same thing when it calls that witness itself for strategic reasons.

Thoughts?

Update: A reader emailed me to say that, despite the language of 608(b), courts allow specific-instances evidence on direct. The reasoning is that 607, allowing a party to impeach its own witnesses, trumps the limitation in 608(b)--all methods of impeachment are available to impeach any witness at any time--your own on DEX or the other party's on CREX.

But I wonder if the limitation-to-cross continues to apply in one situation: When Pty II uses its witness to impeach Pty I's witness. So imagine the following:

Tom has testified, called by Pty I. On the plain language of 608, Pty II could impeach Tom on specific instances of conduct in the following ways:
   • On CREX of Tom, ask him about Tom's untruthful acts: 608(b)(1)
   • Call Ira; on direct, ask him about Tom's character for truth under 608(a). But not specific instances of Tom's conduct under the text of 608(b)(2), because this would not be on CREX.
 
But under the approach courts take to reconcile 608(b) and 607), could Pty II ask Ira, on direct, about Tom's specific instances of untruthful conduct under 608(b)(2)? I understand allowing 608(b)(1) evidence on direct if I am forced to impeach my own witness. But the rationale for that extension does not extend to 608(b)(2) evidence in the Tom/Ira situation I describe here.
 
Further Update: My original emailer says the answer is no, Pty II can't ask Ira about Tom's specific instances. That owes to the prohibition on extrinsic evidence in 608(b), not the cross-examination requirement. Ira testifying to Tom's specific instances would be extrinsic evidence. Which makes sense.

Posted by Howard Wasserman on December 6, 2019 at 11:26 AM in Howard Wasserman, Teaching Law | Permalink

Comments

How does one get added to the Evidence Prof listserv?

Posted by: E.B. | Dec 6, 2019 8:32:55 PM

I missed this on the listserv, but State v. Daniels, 265 P.3d 623 (Mont. 2011), deals with a somewhat similar issue in the character evidence context.

Posted by: Colin Miller | Dec 6, 2019 7:06:55 PM

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